Reply Brief — Madry v. Sorel

#7 Supreme Court, U. ee

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MICHAEL RODAK, JR., CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

No. 77-908

DR. JOHN G. MADRY, JR.,

Petitioner,

v.

DR. OTTO G. SOREL, DR. EDITH K. MANGONE, DR. JOHN T. BLACKBURN,

DR. D. W. McMILLAN, BREVARD HOSPITAL ASSOCIATION, INC., et al.,

Respondents.

On Petition for a Writ of Certiorari to the United States Court of

Appeals for the Fifth Circuit

PETITIONER’S REPLY MEMORANDUM

THEODORE M. FORBES, JR.

GAMBRELL, RUSSELL, KILLORIN &

FORBES

4000 First National Bank Tower ®

Atlanta, Georgia 30303

WILLIAM H. GLEASON

P.O. Box 3266

indialanti

Melbourne, Florida 32903

723-5121 (A.C. 305)

THORWALD J. HUSFELD

LANDIS, GRAHAM, FRENCH, HUSFELD,

SHERMAN & FORD, P.A.

110 West Indiana Avenue

P.0. Box 329

DeLand, Florida 32720

Attorneys for Petitioner

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St. Louis Law Printing Co., Inc., 812 Olive Street 63101 314-231-4477

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TABLE OF AUTHORITIES

Constitution

Fourteenth Amendment to U.S. Constitution ..........

Statutes

Hill-Burton Act, § 622 (60 Stat. 1042, 42 U.S.C.A. § 291c)

ne I ee ee ds SO iecee sede be awe’

Cases

Eaton v. Grubbs, 329 F.2d 710 (4th Cir. 1964) ........

Foster v. Mobile County Hospital Board, 398 F.2d 227

EE Cab on ce cnu oho 64s sea euukeeees

Greco v. Orange Memorial Hospital Corp., 513 F.2d 873

(Sth Cir.), cert. denied, 423 U.S. 1000 (1975) ........

Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974)

Laje v. R. E. Thomason Gen’l Hospital, 564 F.2d 1159

ee Ge EE SUCRE CA eh e Seen swebasehesucuee

Simkins v. Moses H. Cone Memorial Hospital, 323 F.2d

959 (4th Cir. 1963), cert. denied, 376 U.S. 938 (1964)

Sosa v. Board of Managers of Val Verde Memorial Hos-

gmat, 437 F.26 17S Cee Cee. BFE)... wee csccces

Ward v. St. Anthony Hospital, 476 F.2d 671 (10th Cir.

i cecieen panei vee en ChS SH ee Kae es Cee ie es

Page

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ty

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

No. 77-908

DR. JOHN G. MADRY, JR.,

Petitioner,

Vv

DR. OTTO G. SOREL, DR. EDITH K. MANGONE, DR. JOHN T. BLACKBURN,

DR. D. W. McMILLAN, BREVARD HOSPITAL ASSOCIATION, INC., et al.,

Respondents.

On Petition for a Writ of Certiorari to the United States Court of

Appeals for the Fifth Circuit

PETITIONER’S REPLY MEMORANDUM

The Brief for Respondents in Opposition does not challenge

directly the grounds stated for grant of the writ of certiorari.

Respondents could not and do not deny that there ‘s a division

among the Circuits, although they attempt to play down the

scope of the division and the importance of the issue raised.

Respondents’ argument at pages 5-6 of their Brief concerning

a need for nexus overlooks the many cases listed at pages A-1

through A-4 of the Petition for Writ of Certiorari in which nexus

was not found to be essential [although in some cases it ad-

mittedly was, e.g., Ward v. St. Anthony Hospital, 476 F.2d 671,

675 (10th Cir. 1973)]. Respondents omit to state that the pa-

tient upon whom plaintiff allegedly performed the unauthorized

—_ ee

operation was a county welfare patient (R. 1374), whom the

Respondent Hospital was required to accept as a patient by

reason of § 622(f)(2) of the original Hill-Burton Act, 60 Stat.

1042 (p. A-61 of the Petition herein) and by renumbered

§ 603(e)(2) under the 1964 legislation (p. A-91 of the Peti-

tion herein); 42 USCA § 291c(e)(2).

The Respondents’ discussion of the dissent in Greco v. Orange

Memorial Hospital Corp., 423 U.S. 1000 (1975), seems to miss

the fact that two issues were raised by the Petition for Certiorari

in that case. One was the issue raised herein; the other involved

the constitutional right to elective abortion. The reference in

the dissenting opinion to the “task of policing”, 423 U.S. at

1006, appears to relate only to the latter issue.

At page 8 of their Brief, Respondents imply that federal juris-

diction as a consequence of Hill-Burton financing exists only in

cases involving racial discrimination. In fact, that is only one

area where jurisdiction has been found.

Of the sixteen cases listed on pages A-1 through A-4 of the

Petition herein where Federal jurisdiction was found to exist, in

only two, Eaton v. Grubbs, 329 F.2d 710 (4th Cir. 1964), and

Simkins v. Moses H. Cone Memorial Hospital, 323 F.2d 959

(4th Cir. 1963), cert. denied, 376 U.S. 938 (1964), was racial

discrimination the basis for the decision on the merits. In a third,

Foster v. Mobile County Hospital Board, 398 F.2d 227 (Sth

Cir. 1968), racial discrimination was alleged, but the plaintiffs

were found entitled to relied on non-racial grounds. Most of

the other cases involved a denial of procedural “due process”

and some a denial of “equal protection” by reason of residence,

medical training or other non-racial, non-invidious classifica-

tion.

To say that the Federal Courts have jurisdiction in “equal

protection” cases, but not in “due process” cases is repugnant to

the Constitution. The “due process” and “equal protection”

clauses in Section 1 of the Fourteenth Amendment stand in pari

_— oo

materia. Neither is elevated above the other. One cannot say

that under our Federal Constitution one citizen's right to equal

protection of the laws is superior to and more cognizable than

another's right to due process of law. Nor did the Congress

make any distinction in enacting 42 U.S.C. § 1983. It broad

phraseology covers the entire panoply of Constitutional rights.

And regardless of its Reconstruction Era crigins, the Civil Rights

Act of April 20, 1871, 17 Stat. 13, of which § 1983 is a part,

applies equally to all citizens, not just those who have been sub-

jected to racial discrimination. Accord, Jackson v. Metropolitan

Edison Co., 419 U.S. 345 (1974), which assumed that a § 1983

action lay in that non-racial context if “state action” existed.

(Mr. Justice Marshall's dissent in Jackson notes (419 U.S. at

374). “The Court has not adopted the notion, accepted else-

where, that different standards should apply to state action

analysis when different constitutional claims are presented.” )

The existence of a double standard for “equal protection”

cases and “due process” cases would itself constitute a denial

of equal protection and due process.

Since the Petition herein was filed, the United States Court of

Appeals for the Fifth Circuit accepted jurisdiction over another

dispute between a physician and a hospital involving issues of

due process of law. Laje v. R. E. Thomason Gen'l Hospital.

564 F.2d 1159 (Sth Cir. 1977). The Court of Appeals charac-

terized the defendant hospital as “a county hospital,” without

elaboration. Presumably, it would have been financed with Hill-

Burton funds and apparently, like the Val Verde Memorial Hos-

pital,' and unlike the Orange Memorial Hospital,? was con-

sidered to be county-owned.

' Sosa v. Board of Managers of Val Verde Hospital, 437 F.2d

173 (Sth Cir. 1971), set out at pp. A-37 ff of the Petition herein.

* Greco v. Orange Memorial Hospital Corp., 513 F.2d 873 (Sth

Cir.), cert. denied, 423 U.S. 1000 (1975). set out at pp. A-17 ff

of the petition herein.

The division among the Circuits and the rule that has de-

veloped in the Fifth Circuit that permits individual States to

vary the availability of Federal jurisdiction from hospital to hos-

pital requires the consideration of this Court so that a uniform

standard of jurisdiction may be applied to all hospitals in the

United States that are substantially financed with United States

funds.

Respectfully submitted,

THEODORE M. FORBES, JR.

GAMBRELL, RUSSELL, KILLORIN

& FORBES

4000 First National Bank Tower

Atlanta, Georgia 30303

WILLIAM H. GLEASON

P.O. Box 3266

Indialantic

Melbourne, Florida 32903

723-5121 (A.C. 305)

THORWALD J. HUSFELD

LANDIS, GRAHAM, FRENCH,

HUSFELD, SHERMAN &

FORD, P.A.

110 West Indiana Avenue

P.O. Box 329

DeLand, Florida 32720

Attorneys for Petitioner